Addy v. Commissioner of Social Security Administration

Filing 25

AMENDED ORDER RULING ON 16 REPORT AND RECOMMENDATION re 1 Complaint - Social Security, filed by Brandon Devin Addy. Re-filed to correct footnote per Chambers. Signed by Honorable J Michelle Childs on 3/28/2014. (mbro)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
Brandon Devin Addy,

)
)
Plaintiff,
)
)
v.
)
)
Carolyn W. Colvin,
)
Commissioner of Social Security,
)
)
Defendant.
)
___________________________________ )

Civil Action No. 8:13-cv-00027-JMC

ORDER AND OPINION

This matter is before the court for review of the magistrate judge’s Report and
Recommendation (“Report”) (ECF No. 16), filed February 5, 2014, regarding Plaintiff Brandon
Devin Addy’s (“Plaintiff”) claim for Disability Insurance Benefits (“DIB”). Plaintiff filed the
instant action seeking judicial review of the final decision of the Commissioner of the Social
Security Administration (“the Commissioner”) pursuant to 42 U.S.C. § 405(g). (ECF No. 1).
The magistrate judge concluded that the administrative law judge (“ALJ”) applied the proper
legal standards in making the residual functional capacity (“RFC”) determination. (See ECF No.
16 at 1).

Accordingly, the magistrate judge recommends that the court affirm the

Commissioner’s final decision. Id. at 1.
For the reasons set forth below, the court REJECTS the magistrate judge’s Report,
REVERSES the Commissioner’s final decision, and REMANDS this action.
FACTUAL AND PROCEDURAL BACKGROUND
The court concludes upon its own careful review of the record that the factual and
procedural summation in the magistrate judge’s Report is accurate, and the court adopts this
summary as its own. However, a brief recitation of the background in this case is warranted.
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Plaintiff filed an application for DIB, on September 19, 2008, regarding a disability
which he initially alleged began on January 31, 2005, but later amended to April 20, 2006. (Tr.
67, 167–69).1 Plaintiff’s application was denied initially on August 4, 2009 (Tr. 82–86), and
again upon reconsideration by the Commissioner on July 9, 2010 (Tr. 90–92). On July 15, 2011,
Plaintiff had a hearing before an ALJ (Tr. 7–54), and on August 9, 2011, the ALJ found that
Plaintiff was not disabled. (Tr. 59–81). The ALJ found that Plaintiff had severe impairments of
degenerative disc disease of the lumbar spine and status post artificial disc replacement at L4-5
with left lower extremity radiculopathy. (Tr. 64). The ALJ also found Plaintiff has a non-severe
impairment of depression. (Tr. 65). The ALJ concluded that Plaintiff had a RCF to perform
light work with the following specifications:
[N]o lifting and/or carrying over 20 pounds occasionally and 10 pounds
frequently; no standing and/or walking over 6 hours in an 8-hour workday; no
more than occasional stooping, twisting, crouching, kneeling, crawling and
climbing of stairs or ramps; no climbing of ladders or scaffolds; no more than
occasional use of foot pedals or other controls with the lower extremity; and
avoidance of hazards such as unprotected heights, vibration, and dangerous
machinery.
(Tr. 71–72).
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 636(b)(1)(B) of the
Social Security Act to obtain judicial review of the Commissioner’s final decision denying
Plaintiff’s claim for DIB. (ECF No. 1). The magistrate judge reviewed Plaintiff’s case and
provided the Report to the court. (ECF No. 16). In the Report, the magistrate judge found that
the ALJ adequately explained the weight assigned to the opinion of Plaintiff’s vocational
examiner Dr. Brabham, id. at 24, and that the ALJ conducted a proper credibility analysis for

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The court cites to pages in the transcript of the administrative record and not to the electronic
case filing page numbers.
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Plaintiff’s subjective complaints. Id. at 28. Plaintiff filed objections to the findings of the
Report, (ECF No. 18), to which the Commissioner replied, (ECF No. 20).
STANDARD OF REVIEW
The magistrate judge’s Report and Recommendation is made in accordance with 28
U.S.C. § 636(b)(1) and Local Civil Rule 73.02 for the District of South Carolina. The magistrate
judge makes only a recommendation to this court. The recommendation has no presumptive
weight. The responsibility to make a final determination remains with this court. See Mathews
v. Weber, 423 U.S. 261, 270–71 (1976).

The court is charged with making a de novo

determination of those portions of the Report to which specific objections are made, and the
court may accept, reject, or modify, in whole or in part, the magistrate judge’s recommendation
or recommit the matter with instructions. See 28 U.S.C. § 636(b)(1).
The role of the federal judiciary in the administrative scheme established by the Social
Security Act is a limited one.

Section 405(g) of the Act provides, “the findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C.§ 405(g). “Substantial evidence has been defined innumerable times
as more than a scintilla, but less than a preponderance.” Thomas v. Celebrezze, 331 F.2d 541,
543 (4th Cir. 1964). This standard precludes a de novo review of the factual circumstances that
substitutes the court’s findings for those of the Commissioner. See Vitek v. Finch, 438 F.2d 1157
(4th Cir. 1971). The court must uphold the Commissioner’s decision as long as it is supported
by substantial evidence. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). “From
this it does not follow, however, that the findings of the administrative agency are to be
mechanically accepted. The statutorily granted right of review contemplates more than an
uncritical rubber stamping of the administrative agency.” Flack v. Cohen, 413 F.2d 278, 279

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(4th Cir. 1969). [T]he courts must not abdicate their responsibility to give careful scrutiny to the
whole record to assure that there is a sound foundation for the [Commissioner’s] findings, and
that this conclusion is rational.” Vitek, 438 F.2d at 1157–58.
DISCUSSION
Vocational Examiner’s Opinion
In his objections, Plaintiff argues that the ALJ erred by not giving proper weight to the
vocational opinion of Dr. Robert Brabham, a licensed psychologist who conducted a
psychological and vocational evaluation of Plaintiff. (ECF No. 18 at 1–2). Plaintiff contends
that Dr. Brabham’s reliance on the functional capacity evaluation (“FCE”) of physical therapist
Deborah Pitts entitles Dr. Brabham’s opinion to great deference because “FCEs are widely
regarded as the best indicator of an individual’s true capacity for work activity.” Id. at 1–2.
Plaintiff explains that Ms. Pitts estimated that Plaintiff could perform sedentary to light work
only on a part-time basis due to significant deconditioning and limited positional tolerance. Id.
at 1. Plaintiff states that Dr. Brabham’s ultimate opinion that Plaintiff was not yet able to sustain
substantial gainful employment was supported by Plaintiff’s FCE, Dr. Brabham’s own
psychological evaluation, and medical records from eighteen different medical sources. Id. at 1–
2. As such, Plaintiff asserts that the ALJ did not accord Dr. Brabham’s opinion proper weight.
Id.
While the ALJ evaluated Dr. Brabham’s opinion as that of a treating physician, the court
finds that the portion of Dr. Brabham’s report at issue in Plaintiff’s case is Dr. Brabham’s
vocational assessment, not his psychological findings. For that reason, Dr. Brabham’s vocational
opinion is not properly considered that of a treating physician but instead that of a vocational
consultant. See Shively v. Heckler, 739 F.2d 987, 990 (4th Cir. 1984) (discussing an ALJ’s

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consideration of a vocational consultant’s report); see also 20 C.F.R. § 416.913 (listing
psychologists as acceptable medical sources but “for the purposes of establishing intellectual
disability, learning disabilities, or borderline intellectual functioning only”). Despite the court’s
opinion that Dr. Brabham’s report is not entitled to the special status afforded the reports of
treating physicians, the court still finds that the ALJ’s decision to assign Dr. Brabham’s report no
significant weight is not sufficiently supported.
The magistrate judge thoroughly outlined Dr. Brabham’s findings in the Report and the
court adopts that summary as its own while providing a brief recitation.
Dr. Brabham provided the following vocational opinion:
Several factors enter into reaching vocational conclusion and outlooks. They
include his age, only 31, defined as a younger worker; his vocational history of
work which is no longer within his medical restrictions and limitations; pain that
he experiences without pain medications, and negative side effects when he takes
medication; and his inability to even sit for a full work day, at least several days
per week. Taking all of those factors into consideration, it is my opinion, to a
high degree of professional certainty, based on nearly forty-five years of
vocational rehabilitation experience, that he is unable to yet engage in full-time
gainful, competitive employment in his present medical condition. If he is able to
return to and sustain gainful employment, Mr. Addy needs to achieve better pain
management through whatever appropriate medical services might be available.
He also needs vocational rehabilitation services including alternate job
exploration/counseling and/or possible retraining for eventual job placement
services.
(Tr. 414 (emphasis in original)).
The ALJ concluded that Dr. Brabham’s opinion was contradicted by Plaintiff’s
longitudinal history of treatment. (Tr. 68). However, the record does not support this finding.
All of the medical opinions discussed by the ALJ that specifically address Plaintiff’s ability to
work support a more restrictive finding than the ALJ’s RFC of light work. In fact, a couple of
the physicians’ conclusions are largely supportive of Dr. Brabham’s determination that Plaintiff
is unable to work at all. As previously discussed, physical therapist Pitts opined that Plaintiff
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could “perform sedentary to light physical demand labor” but she found that Plaintiff would only
be able to work on a part-time basis. (Tr. 67). The ALJ appears to disregard the portion of Ms.
Pitts’s assessment indicating Plaintiff could only work part-time reasoning that the assessment
was based in part on Plaintiff’s “deconditioning”. (Tr. 68). The court is unclear as to why
Plaintiff’s deconditioning would render him able to perform full-time work as the ALJ seems to
imply. Dr. Donald Johnson also found Plaintiff was able to return to work, but only at the
sedentary level. (Tr. 67). Dr. Robert Phillips reported that Plaintiff would have difficulty being
consistently productive in a work setting due to his pain. (Tr. 70). Dr. Crigler concluded, among
several findings, that Plaintiff would be limited to stand and walk less than two hours of the work
day, would need the ability to shift at will from sitting to standing or walking, would need to lie
down at unpredictable intervals four to five times a day, and would be absent from work more
than three times a month as a result of his impairments. (Tr. 71).
While “[i]t is not…[the court’s] function to substitute [its] judgment for that of the
Secretary if his decision is supported by substantial evidence[,]” Laws v. Celebrezze, 368 F.2d
640, 642 (4th Cir. 1966), the court cannot reasonably reconcile the aforementioned medical
opinions with the ALJ’s decision to discount Dr. Brabham’s opinion or the ALJ’s ultimate RFC
determination.

Therefore, the court remands this action to the Commissioner for further

consideration and explanation of the medical source reports.
Credibility
Plaintiff asserts the ALJ erred in discounting Plaintiff’s allegations concerning the
intensity, persistence, and limiting effects of his impairments.

(ECF No. 18 at 2–3).

Specifically, Plaintiff takes issue with the ALJ’s description of his daily activities as
“representative of a fairly active and varied lifestyle . . . not indicative of a significant restriction

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of activities or construction of interests.” Id. at 3 (citing Tr. 74). Plaintiff asserts that the ALJ
failed to properly consider Plaintiff’s complaints that he could not carry heavy objects and had
difficulty performing household chores and various other activities. (ECF No. 18 at 2).
When determining the credibility of Plaintiff’s testimony concerning his physical
limitations, the ALJ must consider all relevant evidence in the record. See SSR 96-7p. This
analysis requires the ALJ to compare the plaintiff’s claims of pain against objective medical
evidence as well as all other evidence, in order to see if there are inconsistencies prior to
discrediting his allegations. Craig v. Charter, 76 F.3d 585, 595 (4th Cir. 1996). In Craig, the
court described a two-prong analysis for evaluating subjective reports of pain. Id. at 594. First,
there must be objective evidence of physical or mental impairment that could reasonably be
expected to produce pain of the type, severity, and persistence, which the claimant is alleging.
Id. If such evidence exists, the ALJ may then consider the entire record, including both objective
and subjective evidence, to assess the credibility of the plaintiff’s reports concerning the severity
of his pain. Id. at 595.
Additionally, the ALJ’s determination “must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently specific to
make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to
the individual’s statements and the reasons for the weight.” Id.; see also Hammond v. Heckler,
765 F.2d 424, 426 (4th Cir. 1985) (stating that the ALJ’s credibility determination “must refer
specifically to the evidence informing the ALJ’s conclusions”).

Although credibility

determinations are generally left to the ALJ’s discretion, such determinations should not be
upheld if they are based on improper criteria. Breeden v. Weinberger, 493 F.2d 1002, 1010 (4th
Cir. 1974). If the ALJ points to substantial evidence in support of his decision and adequately

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explains the reasons for his finding on the claimant’s credibility, the court must uphold the ALJ’s
determination. Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001).
The ALJ found that Plaintiff’s impairments could reasonably be expected to cause some
of his alleged symptoms. (Tr. 73). Nonetheless, the ALJ discounted the credibility of Plaintiff’s
allegations to the extent they were inconsistent with the RFC. Id. Plaintiff testified that as a
result of sleeping difficulties at night, he takes two-hour naps in the afternoons. (Tr. 72).
Plaintiff also testified that while he could lift twenty pounds, he could only carry ten pounds. Id.
Plaintiff stated that he can walk about 100–150 feet before needing to stop, and could drive but
experienced pressure in his lower back while doing so. Id. Plaintiff asserted that he had
difficulty bending over to wash clothes or wash dishes and that while he grocery shops, he finds
hardship in walking and carrying the groceries. (Tr. 73). Plaintiff also testified that he spends
three days a week in bed due to his pain. Id.
The ALJ diminished Plaintiff’s credibility, in part, because there was no documentation
in the medical evidence that Plaintiff had reported his limitations to his physicians. (Tr. 73).
The ALJ stated that Plaintiff’s medical records did not indicate he appeared in distress at his
appointments. (Tr. 74). The ALJ also discussed that there was no evidence of Plaintiff visiting
the emergency room, having hospital visits or further surgery, or any atrophy or losses in weight.
Id.
The Fourth Circuit has instructed, once the ALJ has concluded, as in this case, that a
plaintiff has a medical condition that could cause the pain alleged, his subjective “complaints
may not be rejected merely because the severity of pain cannot be proved by objective medical
evidence.” Mickles v. Shalala, 29 F.3d 918, 918 (4th Cir. 1994). The court finds that the
absence of objective evidence is insufficient to disregard Plaintiff’s subjective complaints.

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Moreover, throughout the ALJ’s summary of the record there are indications that Plaintiff
reported his limitations to his physicians. (See Tr. 67 (“claimant reported no significant benefit
with medications or with injections in regards to his pain…no adequate pain relief”); Tr. 68
(“claimant reported…his leg and foot pain was more troublesome”); Tr. 69 (“noted a diagnostic
impression of…chronic low back pain”); Tr. 70 (“claimant presented with complaints of
persistent low back pain with symptoms into the left leg”); Tr. 71 (“discharged due to his
complaints of worsening pain”)).
In further support of his discrediting of Plaintiff’s complaints, the ALJ noted that Plaintiff
did not appear to be in pain or discomfort at the hearing. (Tr. 74). The ALJ acknowledged that
Plaintiff’s appearance at the hearing, at most, could only be given “slight weight.” The court
agrees.
The ALJ’s personal observations of Plaintiff do not constitute substantial evidence for
finding Plaintiff not credible. This type of decision-making has been condemned as “sit and
squirm” jurisprudence. See Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir. 1982) (“[T]his
approach will not only result in unreliable conclusions when observing claimants with honest
intentions, but may encourage claimants to manufacture convincing observable manifestations of
pain or, worse yet, discourage them from exercising the right to appear before an [ALJ] for fear
that they may not appear to the unexpert eye to be as bad as they feel.”) (internal citation
omitted); see also Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985).
The ALJ cited the physical therapist’s opinion that Plaintiff is able to do more than he
thinks he can. (Tr. 73). However, the physical therapist also indicated that the inconsistencies
between the reliability and accuracy of Plaintiff’s subjective reports of limitation were minor.
(Tr. 461). Moreover, the ALJ stated that Plaintiff’s daily activities, namely, the driving of his

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car, grocery shopping, household chores, attending doctor’s appointments, and using the
computer indicated he was not significantly restricted. (Tr. 74). Yet the ALJ acknowledged that
Plaintiff stated he experiences pain from driving (Tr. 68, see also Tr. 45) and uses his computer
to contact friends on social networking sites (Tr. 69). Plaintiff testified that he “cooks” meals in
the microwave and has difficulty lifting and carrying his clothes in order to wash them. (Tr. 45–
47). Plaintiff also explained that it pains him to bend over the sink while washing dishes. (Tr.
47). The court does not find it reasonable to infer “a fairly active and varied lifestyle” on the
basis of this evidence as the ALJ has done. The court likewise finds it improper to conclude that
Plaintiff does not have the limitations he alleges because he attends his medical appointments.
See Mickles, 29 F.3d at 921(affirming a finding that the plaintiff was not disabled based on a lack
of evidence that plaintiff was attending medical appointments, using medication for the
symptoms she alleged, or otherwise treating her purported ailments).
Finally, the ALJ’s conclusion that Plaintiff can lift or carry up to twenty pounds
occasionally and ten pounds frequently is supported by several medical sources in the record.
(See Tr. 66, 68, 71). Nonetheless, the other specifications of the RFC determination are not
compatible with Plaintiff’s testimony, and the court does not find that the ALJ’s cumulative
discussion of Plaintiff’s subjective complaints meets the requirement of substantial evidence.
Accordingly, the court remands this action to the Acting Commissioner to conduct a proper
credibility analysis.
CONCLUSION
Based on the aforementioned reasons and after a thorough review of the Report and the
record in this case, the court REJECTS the magistrate judge’s Report and Recommendation

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(ECF No. 16), REVERSES the Commissioner’s final decision, and REMANDS this action
under 42 U.S.C. § 405(g).
IT IS SO ORDERED.

United States District Judge
March 28, 2014
Greenville, South Carolina

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